Citation Nr: 9918116
Decision Date: 06/30/99 Archive Date: 07/07/99
DOCKET NO. 98-05 386 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for headaches.
2. Entitlement to service connection for skin disorders.
3. Entitlement to service connection for hypertension.
4. Entitlement to service connection for a musculoskeletal
disorder.
5. Entitlement to service connection for an acquired
psychiatric disability to include post-traumatic stress
disorder (PTSD) and a sleep disorder.
6. Entitlement to a permanent and total disability rating
for pension purposes.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from July 1965 to July 1967
and from November 1990 to May 1991. He served in Southwest
Asia.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in North Little
Rock, Arkansas.
REMAND
Several medical reports refer to the appellant as a combat
veteran. Combat service requires special analysis of the
facts surrounding the incurrence of disease or injury in
service. 38 U.S.C.A. §1154(b) (West 1991); 38 C.F.R.
§ 3.304(d) (1998). See Collette v. Brown, 82 F.3d 389
(Fed.Cir. 1996); Arms v. West, 12 Vet. App. 188 (1999). The
veteran should be asked to report any combat service he may
have had.
Post-traumatic stress disorders must be verified. The RO
should ask the veteran for the details of the claimed
stressors and forward the information for verification. See
64 Fed. Reg. 32807, 32808 (June 18, 1999); to be codified at
38 C.F.R. § 3.304(f) (1999).
In March 1998, the RO denied numerous disorders claimed as
due to an undiagnosed illness. In his April 1998 appeal, the
veteran asserted that he was suffering from Gulf War
Syndrome. Liberally construed, this could be accepted as a
notice of disagreement with the denial of those numerous
disorders claimed as due to an undiagnosed illness. The RO
must now send the veteran a statement of the case on those
issues. 38 U.S.C.A. § 7105 (West 1991).
Further, in regard to the undiagnosed illness claims, on
April 28, 1998, the VA Undersecretary for Health issued
Guidelines for Disability Examinations in Gulf War Veterans,
IL 10-98-010. This provided a new protocol for examination
of Gulf War veterans. Under the new protocol, a physician
will review the veteran's symptoms and determine if those
symptoms are associated with a diagnosed illness or
specifically state if the veteran has a symptom as the result
of an undiagnosed illness. The veteran should be afforded
the benefits of this new examination protocol.
There is an indication that the veteran has applied for
Social Security Administration (SSA) benefits. Those records
must be reviewed and considered. See Lind v. Principi, 3
Vet. App. 493, 494 (1992).
On November 6, 1998 the appeal was certified for appellate
review and the claim file was transferred to the Board. The
appellant was informed that he could request a change in
representation, a personal hearing or submit additional
evidence within 90 days from the date of the letter. On
November 13, 1998, within the 90 day period, the RO received
"additional evidence" from the appellant, without a written
waiver of entitlement to initial RO consideration. That
evidence was then forwarded to the Board. See 38 C.F.R.
§ 20.1304 (1998). This consisted of a medical statement on
the veteran's psychiatric disability.
38 C.F.R. § 20.1304(a) (1998) provides, in part, that an
appellant may submit additional evidence within the 90 day
period after notice of certification and transfer of the
claim file to the Board, subject to the requirement of
38 C.F.R. § 20.1304(c) (1998). In turn, 38 C.F.R.
§ 20.1304(c) provides that "[a]ny pertinent evidence
submitted [under § 20.1304] must be referred to the [RO] for
review and preparation of a [SSOC] unless this procedural
right is waived" in writing.
Here, the veteran has submitted additional evidence which is
new, in that it was not previously on file. However, no
written waiver of initial consideration of this evidence by
the RO has been file. Having received this "additional
evidence" within the 90 day period and in the absence of a
written motion demonstrating good cause for the delay, the
Board is precluded by regulation from considering this
"evidence" in conjunction with the present appeal.
Therefore, the "additional evidence" is hereby referred to
the RO for initial consideration pursuant to 38 C.F.R.
§ 20.1304 (1998).
Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following actions:
1. The RO should request the SSA to
furnish a copy of any administrative
decision granting the veteran disability
benefits, as well as a complete copy of
his medical records.
2. The veteran's service personnel
records, or a copy thereof, should
obtained and associated with the claims
folder.
3. The RO should request from the veteran
a statement containing as much detail as
possible regarding the stressors to which
he was exposed during service. The
veteran should be asked to provide
specific details of the claimed combat
events and of any other stressful events
during service, such as dates, places,
detailed descriptions of the events, his
service units overseas, duty assignments
and the names and other identifying
information concerning any individuals
involved in the events. The veteran
should be told that the information is
necessary to obtain supportive evidence of
the stressful events and that failure to
respond may result in adverse action.
4. Regardless of the veteran's response,
the RO should review the file and prepare
a summary of all the claimed stressors.
This summary and all associated documents
should be sent to the U.S. Armed Services
Center for Research of Unit Records
(USASCRUR) [previously the United States
Army and Joint Services Environmental
Support Group (ESG)], 7798 Cissna Road,
Springfield, VA 22150. See VA MANUAL M21-
1, Part VI, Paragraph 7.46 (1992). They
should be requested to provide any
information which might corroborate the
veteran's alleged stressors.
5. The RO should schedule the veteran
for an examination in accordance with
Disability Examinations in Gulf War
Veterans, IL 10-98-010, April 28, 1998.
6. The General Counsel, in representing
VA before the Court, has noted that the
regional office has duties. Pursuant to
38 C.F.R. § 3.655 (1998), when the
claimant without good cause fails to
report for examination, the claim will be
denied. However, the Secretary must show
a lack of good cause for failing to
report. Further, VA has a duty to fully
inform the veteran of the consequences of
the failure to undergo the scheduled
examination. The regional office must
comply with all notification requirements
regarding the duty to report and the
failure to report for examination. This
remand serves as notification of the
regulation.
7. The RO should take all appropriate
steps to ensure that all evidence
submitted by the veteran has been
associated with his claim file.
8. Then RO should readjudicate the
claims in light of the additionally
obtained evidence.
9. The RO should issue a statement of
the case on the undiagnosed illness
issues.
The veteran is reminded that he must file
a timely substantive appeal which should
set out specific arguments relating to
errors of fact or law. The Board may
dismiss any appeal which fails to do so.
38 C.F.R. § 20.202 (1998).
Following completion of these actions, the RO should review
the claims. In accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review. The Board intimates no
opinion as to the ultimate outcome of this case.
The appellant is free to submit additional evidence and
argument while the case is in remand status. See Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
The Board takes this opportunity to remind the veteran that
he must present a "well grounded" claim. That is, he must
present a claim which is plausible. 38 U.S.C.A. § 5107(a)
(West 1991). Service connection is granted for disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991). That means that for a claim of service connection,
there must be evidence of a current disability, evidence of
disease or injury during service and evidence of a link
between the two. Further, the evidence must be competent.
That is, an injury during service may be verified by medical
or lay witness statements; however, the presence of a current
disability requires a medical diagnosis; and, where an
opinion is used to link the current disorder to a cause
during service, a competent opinion of a medical professional
is required. See Caluza v. Brown, 7 Vet. App. 498 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
CLIFFORD R. OLSON
Acting Member, Board of Veterans' Appeals